Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018 Page 1 of 5

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Ruth A. Johnson

Megan E. Shipley

Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

James T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Travis Jovan Allen, Jr.

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 6, 2018

Court of Appeals Case No.

49A02-1710-CR-2345

Appeal from the Marion Superior 

Court

The Honorable Hugh Patrick 

Murphy, Magistrate

Trial Court Cause No.

49G16-1706-F6-20572

Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018 Page 2 of 5

Case Summary

[1] Travis Allen, Jr. (“Allen”) appeals the trial court’s assessment of a supplemental 

public defender fee. We reverse and remand.

Issue

[2] The sole issue before us is whether the trial court erred in assessing a $100 

supplemental public defender fee to Allen.

Facts

[3] On August 5, 2016, a trial court issued a no-contact order barring Allen from 

contacting R.H. The trial court subsequently provided oral and written notice 

of its no-contact order to Allen. On June 2, 2017, Allen went to R.H.’s 

residence and was arrested. On June 2, 2017, the State charged him with Level 

6 felony residential entry and Class A misdemeanor invasion of privacy.1 Allen

appeared for an initial hearing on June 5, 2017, during which the trial court 

appointed “indigent counsel”; the corresponding chronological case summary

entry states, “Indigent Counsel Appointed at County Expense.” App. Vol. II p. 

10, 51. The order of appointment of public defender states that Allen’s petition 

for appointment of counsel is “GRANTED; as the court finds that the 

defendant is currently indigent” and that “[n]o reimbursement [is] required.” 

Id. at 54.

 

1 The State dismissed the Level 6 felony charge on August 29, 2017. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018 Page 3 of 5

[4] Allen was tried by a jury on August 30, 2017, and was found guilty of Class A 

misdemeanor invasion of privacy. In sentencing him, on September 18, 2017, 

the trial court imposed no jail time or fine, but ordered him to complete eighty 

hours of community service and assessed court costs of $185. The trial court 

referred to the $185 in court costs in its sentencing remarks, but did not mention 

a supplemental public defender fee. On its sentencing order form, however, the 

trial court assessed both court costs of $185 and a $100 supplemental public 

defender fee, for a total of $285 in “[m]onetary [o]bligations.” Id. at 19. The 

trial court did not conduct a hearing as to Allen’s ability to pay fees and costs. 

He now appeals the assessment of the supplemental public defender fee.2

Analysis

[5] Allen argues that the trial court erred in assessing the supplemental public 

defender fee. 

There are three statutes that address when a defendant must 

reimburse the county for counsel provided to him at public 

expense—all three of which require the funds to be deposited in 

the county’s supplemental public defender services fund. A trial 

court can order reimbursement for costs of representation under 

 

2

In his appellate brief, Allen also argues that the trial court erred in ordering him to complete community 

service work. In his verified notice of post-judgment change in circumstances, filed on May 11, 2018, Allen 

advises that, on May 7, 2018, the trial court conducted a compliance hearing wherein it found him to be in 

compliance and closed the case. As Allen has completed his sentence, his argument as to community service 

is moot. Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (holding that once sentence is served, the issue of its 

validity is rendered moot).
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018 Page 4 of 5

any of the three statutes or combination thereof. The first statute, 

Indiana Code § 35-33-7-6, provides in relevant part:

If the court finds that the person is able to pay part of the cost of 

representation by the assigned counsel, the court shall 

order the person to pay the following:

(1) For a felony action, a fee of one hundred dollars 

($100).

Ind. Code § 35-33-7-6(c). Although this statute contemplates that 

trial courts will order the defendant to pay the $100 fee at the 

initial hearing, see I.C. § 35-33-7-6(a), the statute does not 

prohibit trial courts from imposing it at other stages of the 

proceedings.

The remaining two statutes, Indiana Code §§ 33-9-11.5-6 and [33-

37-2-3], allow trial courts to impose representation costs against a 

defendant in excess of $100. Specifically, Indiana Code § 33-9-

11.5-6(a) provides that if “the court makes a finding of ability to pay 

the costs of representation,” the defendant shall pay “[r]easonable 

attorney’s fees if an attorney has been appointed for the person 

by the court.” These fees, which cannot exceed the cost of 

defense services rendered to the person, can be imposed “at any 

stage of a prosecution.” Ind. Code § 33-9-11.5-6(a), (d).

Finally, Indiana Code § [33-37-2-3(a), -(e)] provide[ ] that “[w]hen 

the court imposes costs, it shall conduct a hearing to determine whether 

the convicted person is indigent.” If, after such a hearing, “the court 

determines that a convicted person is able to pay part of the costs of 

representation, the court shall order the person to pay an amount 

of not more than the cost of the defense services rendered on 

behalf of the person.” Ind. Code § [33-37-2-3(e)]. This fee must 

be assessed when the court imposes costs. I.C. § [33-37-2-3(a)].
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2345 | July 6, 2018 Page 5 of 5

May v. State, 810 N.E.2d 741, 745-46 (Ind. Ct. App. 2004) (emphasis added).

[6] The foregoing statutes require the trial court to conduct a hearing and to make a 

finding as to the defendant’s ability to pay before imposing public defense costs. 

No such hearing was conducted here; nor was such a finding reached. In its 

brief, the State concedes, “[R]emand appears necessary in order to clarify the 

inconsistency between the finding of indigency, which states that no 

reimbursement is required, and the contradictory order requiring that public 

defender costs be paid.” Appellee’s Br. p. 12. Accordingly, and given the

inconsistencies between the trial court’s record, its sentencing remarks, and its 

sentencing order, we reverse the assessment of the supplemental public defender 

fee and remand to the trial court with instructions to conduct a hearing to 

determine whether Allen is able to pay part of the costs of his representation.

Conclusion

[7] The trial court erred in assessing a supplemental public defender fee to Allen 

without conducting a hearing to determine his ability to pay part of the costs of 

his representation. We reverse and remand for a hearing consistent with this 

opinion.

[8] Reversed and remanded.

[9] Vaidik, C.J., and Pyle, J., concur.